Defendant, by Notice of Motion, seeks an Order of this Court dismissing plaintiffs' complaint pursuant to CPLR 3211(a)(2), on the grounds that this Court has no jurisdiction over the subject matter of this action, and pursuant to CPLR 3211(a)(8), on the grounds that this Court has no jurisdiction over the person of defendant. For the reasons set forth herein, defendant's motion is hereby GRANTED, pursuant to CPLR 3211(a)(8), in that this Court does not have jurisdiction over the person of defendant.

Plaintiffs have commenced the instant action for defamation and intentional infliction of emotional distress by Summons and Complaint dated May 16, 2006. The complaint alleges that defendant posted libelous statements on a Yahoo! internet message board, for the time period June 5, 2005 through April 3, 2006, concerning plaintiff corporation and its officers and directors, including plaintiff DR. D.J. FREED, who is the president and chief executive officer of the corporation.

The within complaint recites that plaintiff COMPETITIVE TECHNOLOGIES, INCORPORATED, is a Delaware corporation, with headquarters in Fairfield, Connecticut, but is silent with respect to plaintiff FREED's domicile. The complaint further recites that defendant, upon information and belief, is a New York resident with a usual place of abode at 29 Briarfield Lane, Huntington, New York. In addition, the complaint alleges that the Court has jurisdiction over this case pursuant to CPLR 140-b. The Court is not aware of any such section 140-b of the CPLR, but the Court assumes that plaintiffs intended to refer to section 140-b of the Judiciary Law which sets forth the general jurisdiction of the supreme court. The complaint alleges that venue is proper in Suffolk County, pursuant to CPLR 503, based upon defendant's residence. Defendant now challenges this allegation of residency, arguing that none of the parties to this action were domiciliaries of the State of New York at the time of commencement of the instant action. As such, defendant alleges that this Court does not have personal jurisdiction over defendant. In addition, defendant moves to dismiss upon the ground that this Court has no jurisdiction over the subject matter of the action.

Defendant moves to dismiss, pursuant to CPLR 3211(a)(2), arguing that this Court does not have subject matter jurisdiction to hear the instant action. However, defendant failed to give any reasoning or authority for this argument. In opposition, plaintiffs argue that this Court has subject matter jurisdiction to hear this action, as the supreme court is a court of general original jurisdiction. This Court agrees. Article VI, section 7(a) of the New York State Constitution provides that, "the supreme court shall have general original jurisdiction in law and equity" (NY Const, art VI, § 7[a]). "The New York Supreme Court is a court of original, unlimited, and unqualified jurisdiction and is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed" (Fry v Village of Tarrytown, 89 NY2d 714 [1997]; see also Matter of Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Doe v Riback, 7 [*2]Misc 3d 341 [2005]). As such, defendant's allegation that this Court does not have subject matter jurisdiction to hear the instant case is unavailing, and that branch of defendant's motion is denied.

Turning to defendant's argument with respect to personal jurisdiction, defendant alleges that as of October 2004, he no longer resides in the State of New York, and is a resident and domiciliary of the State of Florida. In support of this allegation, defendant submits a copy of his Florida driver's license, as well as a "Property Information Card" from the Palm Beach County Property Appraiser which indicates that defendant and his wife own real property in Boynton Beach, Florida. Defendant alleges that he currently has no real property, no residences, nor any other contact with the State of New York. Further, defendant argues that this Court does not have long-arm personal jurisdiction over him, pursuant to CPLR 302, as that section specifically excludes long-arm jurisdiction in actions for defamation of character.

Defendant alleges that he was not a domiciliary of the State of New York in May of 2006 when this action was commenced. Assuming defendant's contention to be correct, plaintiffs attempt, in opposition to the instant application, to invoke long-arm personal jurisdiction over defendant pursuant to CPLR 302. Defendant alleges that plaintiffs' complaint suffers from a "critical omission," in that it lacks an affirmative pleading with regard to residency upon which to base jurisdiction. However, a basis for jurisdiction is not required to be pled in the first instance in a complaint (see CPLR 3013; see also Rung v United States Fidelity & Guaranty Co., 139 AD2d 914 [1988]; Fishman v Pocono Ski Rental, Inc., 82 AD2d 906 [1981]).

Plaintiffs have framed two causes of action in the complaint, to wit: Defamation and intentional infliction of emotional distress, however, both claims arise from the same statements allegedly posted on the internet by defendant. Each cause of action must be analyzed separately by the Court regarding long-arm personal jurisdiction (see e.g. Nasso v Seagal, 263 F Supp 2d 596 [2003]; Cosmetech Int'l v Der Kwei Enter. & Co., 943 F Supp 311 [1996]; Interface Biomedical Laboratories Corp. v Axiom Medical, Inc., 600 F Supp 731 [1985]).

CPLR 302, New York's long-arm jurisdiction statute, provides in pertinent part:

(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state.

Plaintiffs submit correspondence from Cablevision Systems Corporation, apparently to show that defendant maintains an internet account in New York with that service provider. However, the documentation provided shows that the account used to post the statements in question was not registered to defendant, but rather to his wife, TRINA PROSS, who is not named as a defendant herein.

Plaintiffs further attempt to rely on defendant's alleged business transactions within the state, i.e. purchasing and selling securities using a broker located in New York, coupled with the alleged libelous statements posted on the internet, as a basis for long-arm jurisdiction. Under CPLR 302(a)(1), a court may exercise jurisdiction over a non-domiciliary if he or she "transacts business" within the state. "Transacting business" is defined as purposely availing himself or herself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws (CPLR 302[a][1]; see e.g. Hammer v Trendl, 2003 US Dist LEXIS 623 [2003]). For a court to exercise personal jurisdiction over a non-domiciliary defendant under the "transacting business" provision, a defendant must transact business in New York, and the claim against defendant must arise out of the underlying business activity (see e.g. Newbro v Freed, 337 F Supp 2d 428 [2004]). Defendant denies the existence of any business transactions, and the Court notes that the libelous statements in question were posted on a passive message board and not in connection with any business transactions.

In addition, in order to exercise personal jurisdiction over a non-resident defendant, something more than the mere posting of information on a passive web site is required to indicate that the defendant purposefully directed his activities at the forum state (Hammer v Trendl, 2003 US Dist LEXIS 623, supra). Moreover, a defendant whose out-of-state defamatory statements enter New York as a result of a publisher's routine distribution has been [*4]held not to have transacted business in New York (see Montgomery v Minarcin, 263 AD2d 665 [1999]; Yanni v Variety, Inc., 48 AD2d 803 [1975]; Streslin v Barrett, 36 AD2d 923 [1971]). As such, the Court finds that CPLR 302 long-arm jurisdiction is not available to plaintiffs with respect to the cause of action for defamation.

With respect to the cause of action for intentional infliction of emotional distress, the Court finds that the instant facts do not support a basis for jurisdiction pursuant to CPLR 302. CPLR 302(a)(3) provides that if a defendant commits a tortious act without the state causing injury to person or property within the state, jurisdiction may be established, if the defendant (1) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state; or (2) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce (CPLR 302[a][3]). Assuming, arguendo, that defendant posted the statements on the internet message board from a computer in the State of Florida, the Court finds that this conduct does not meet any of the aforementioned requirements of CPLR 302(a)(3).

Accordingly, based on the foregoing, defendant's motion to dismiss plaintiffs' complaint is granted based upon lack of personal jurisdiction. The Court finds no basis for jurisdiction over the person of defendant with respect to either cause of action.

The foregoing constitutes the decision and Order of the Court.

Dated: January 26, 2007

HON. JOSEPH FARNETI

Acting Justice Supreme Court